Identification Of The Property Liable To One Of The Husband And Wife In Enforcement

The problem of the identification of one spouse's responsible property comes from the enforcement stage of the court.There has been a lot of controversy in China about how to implement the personal debt between husband and wife.Due to the lack of specific enforcement laws and regulations to regulate,courts in different regions have different practices,which often damage the legitimate rights and interests of creditors and debtors' spouses,resulting in disorderly enforcement.Until 2016,the Supreme People's Court issued guiding cases and the written judgment and publicly accepted the question and answer,make clear the attitude and position,That is,if the debt is not defined as joint debt of husband and wife at the trial stage,the executing agency may not identify the nature of the debt or add the spouse of the person subjected to execution as the joint execution person at the execution stage.This move has set a clear direction for local courts,which means the lawful property rights and interests of the spouse of the person subjected to execution may not be harmed in the execution of personal debt,personal debt can only be repaid by personal property.So the court need to identify the share of the person subjected to execution in the joint property and then execute,so as to satisfy the creditor's rights and reduce the loss of the debtor's spouse,balance the interests of the creditor and the non-debtor.But how to identify the liability property of one party of husband and wife,there are obvious gaps and defects in existing laws.At present,the court can only follow the relevant provisions of article 14 of the supreme people's court on sealing up,distraining and freezing property in civil execution,but the rules are crude and regulate the property of all co-owners,as couples become more intimate,more special problems arise in the identification process,such as how to distinguish between divisible and indivisible property? Is it a partial division or is it necessary to divide the entire community property? Does the court have the right to split if the agreement can't be reached? And how to prevent the couple from infringing on the creditor's interests,etc.Problems arising from these practices cannot be solved,which leads to poor operability and low efficiency of identification procedures,and makes it difficult for courts push the tribunal process.This paper discusses the importance and necessity of the recognition procedure of marital property,studies and discusses how to construct the effective identification procedure,provide some suggestions to improve legislation,and make systematic conception of relevant systems.This paper is divided into four parts,the first part mainly makes a basic overview of the identification of the responsible property of one of the husband and wife,and introduces the legal relationship between husband and wife when enforcing their common property and the types of common property.At last,it brings out the problem of identifying one spouse's liability property.The second part mainly summarizes the practical problems faced by the court when enforcing the property liability of one spouse,including the legislative vacancy as well as local courts to enforce the property of one spouse liability four models.The third part mainly combines the basic principles of the civil procedure law and the relevant judicial interpretation and written judgment by the Supreme Court in recent years,and discusses the legal basis and necessity of existence and development of identification procedure from positive and negative aspects.The fourth part systematically discusses the construction and operation mode of the recognition program,the identification principle and property control as well as the identification of personal property and the agreement on the division of husband and wife's common property and children's property and other issues are detailed and standardized.In addition,the article also analyzes the problems and difficulties in practice,and sorts out effective solutions to balance the interests of all parties.